Citation Nr: 0425114
Decision Date: 09/13/04 Archive Date: 09/16/04
DOCKET NO. 04-10 035 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUES
1. Entitlement to an initial rating in excess of 20 percent
for type II diabetes mellitus with peripheral neuropathy.
2. Entitlement to an initial (compensable) rating for
Hodgkin's disease.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Carole R. Kammel, Counsel
INTRODUCTION
The veteran served on active duty from March 1967 to April
1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2003 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Louisville, Kentucky, wherein the RO granted service
connection for diabetes mellitus and assigned an initial 20
percent disability evaluation, effective May 8, 2001. By
that same rating action, the RO also granted service
connection for Hodgkin's disease and assigned an initial
noncompensable evaluation, effective December 5, 2001. By a
March 2004 rating decision, the RO granted service connection
for peripheral neuropathy and included it as part of the
service-connected rating for diabetes mellitus.
Because this appeal comes from initial ratings assigned in
conjunction with the awards of service connection for
diabetes mellitus with peripheral neuropathy and Hodgkin's
disease, the Board must analyze whether different ratings are
warranted since the effective date of the awards of service
connection-May 8, 2001 and December 5, 2001, respectively
(so-called "staged ratings"). Fenderson v. West, 12 Vet.
App. 119 (1999).
REMAND
On a VA Form 9 (Appeal to Board of Veterans' Appeals),
received by the RO in March 2004, the veteran indicated that
he desired a hearing before a member of the Board sitting at
the Louisville, Kentucky RO. In written correspondence,
received by the RO in April 2004, the veteran requested that
the hearing by conducted by way of electronic
videoconference. An appellant, or an appellant's
representative, may request a hearing before the Board at a
Department of Veterans Affairs field facility when submitting
the substantive appeal. 38 C.F.R. § 20.703 (2003). Pursuant
to 38 C.F.R. § 20.700(a) (2003), a hearing on appeal will be
granted if a veteran, or a veteran's representative acting on
his or her behalf, expresses a desire to appear in person.
When suitable facilities and equipment are available, an
appellant may be scheduled for an electronic hearing. Any
such hearing will be in lieu of a hearing held by personally
appearing before a member of the Board and shall be conducted
in the same manner as and considered the equivalent of such a
hearing. 38 C.F.R. § 20.700(e) (2003). The Board shall
decide an appeal only after affording the veteran an
opportunity for a hearing. See 38 U.S.C.A. § 7107(3)(b)
(West 2002). Because the Board may not proceed with an
adjudication of the veteran's claim without affording him an
opportunity for the hearing he requested, a remand is
required.
Accordingly, this case is remanded to the RO for the
following:
The RO should take steps to schedule
the veteran for a videoconference
hearing, to be held at the RO in
Louisville, Kentucky, before a
member of the Board sitting in
Washington, DC. Appropriate
notification should be given to the
veteran, and such notification
should be documented and associated
with the veteran's claims folder.
After giving the appellant opportunity to appear for the
hearing, the case should be returned to the Board for further
appellate review, if in order. By this remand, the Board
intimates no opinion as to any final outcome warranted. No
action is required of the veteran until he is notified by the
RO. The veteran has the right to submit additional evidence
and argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims (Court) for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183,
§§ 707(a), (b), 117 Stat. 2651 (2003) (to be codified at
38 U.S.C. § 5109B, and 38 U.S.C. § 7112).
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the United States Court of Appeals for
Veterans Claims. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(2003).